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Nemo Tenetur Seipsum Accusare
1
COMMENTS ON THE FIFTH AMENDMENT
AND ITS USE IN FAMILY LAW CASES
by Edward D. Barnes and
Charles E. Powers
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February 2002
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T
he privilege of not having to incriminate oneself predates the
founding of our country. Roots of the privilege lie in English
common law and arose over a long period of time in response
to England’s systems of law enforcement which relied heavily
upon the examination of alleged wrongdoers and the impression
of an ex officio oath to compel an alleged wrongdoer to affirm
his culpability. As objections to these tactics rose, the maxim of
nemo tenetur seipsum accusare (“no man is bound to accuse
himself”) gradually entered the legal system. When Virginia ratified
the Bill of Rights on December 15, 1791, the Fifth Amendment
provided that no person “shall be compelled in any criminal case
to be a witness against himself”1 and became the law of the land.
Long before the Founding Fathers included the benefits of the
privilege in the nation’s pre-eminent legal document, Virginia’s
Founding Fathers had included the privilege in its original constitution where it remains today, virtually unchanged over the
last 225 years.2 Though the privilege has had its critics, the Fifth
Amendment and the states’ counterparts are firmly entrenched in
our understanding of our justice system. Most individuals recognize the privilege as a necessary protection against the abuse of
power by the state.
Long before the concept of the privilege against self-incrimination
entered the legal arena, adultery was considered a serious crime.
Hammurabi deemed adultery a crime punishable by death.3 “The
Capitall Lawes of New-England” dating from the seventeenth
century were drawn by the Massachusetts Bay Colony and are
the first written enumeration of offenses punishable by death
known to exist in this country. They included adultery as a capital offense.4 Virginia, too, made adultery a capital offense,5 but
today classifies it as a Class 4 misdemeanor punishable by a fine
of up to $250.6 Though rarely prosecuted as a crime, it still forms
a large part of the legal system as it relates to divorce matters
and criminal law.
Adultery In Divorce Proceedings
Adultery is the first listed ground for a final divorce in Virginia7
and is the subject of some of the most hotly contested divorce
cases. Not only do emotions run high but entire legal and negotiation strategies are developed based on the allegation of adultery as they may affect spouse support or other matters. The
focus of this article is not on the ground of adultery itself.
Rather, the focus of this article is on the effect adultery has on
some of the attendant issues in a divorce matter such as spouse
support, equitable distribution and custody of minor children
and how these are affected by the invocation of the privilege
against self-incrimination.
First, in a divorce proceeding, statutory law specifically states
that the trial court may not award spouse support if adultery
is proved:
[N]o permanent maintenance and support
shall be awarded from a spouse if there exists
in such spouse’s favor a ground of divorce
under the provisions of subdivision (1) of
§ 20-91. However, the court may make such
an award notwithstanding the existence of
such ground if the court determines from
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clear and convincing evidence, that a denial
of support and maintenance would constitute
a manifest injustice, based upon the respective
degrees of fault during the marriage and the
relative economic circumstances of the parties.8
The consequences of proving adultery, therefore, may be quite
serious, since a spouse may be denied any support if the allegations are proved. Also, the spouse who has committed adultery
may counter by attempting to prove his or her spouse also committed adultery. This recrimination may deny each a ground for
divorce barring neither party from seeking spouse support. Thus,
the stakes for proving adultery increase. Either party may consider the invocation of his or her privilege against self-incrimination or both may use it in the same case.
Second, in determining the equitable division of marital property, adultery may be relevant under at least two of the required
statutory factors:
The amount of any division or transfer of
jointly owned marital property, and the amount
of any monetary award, the apportionment
of marital debts, and the method of payment
shall be determined by the court after a consideration of the following factors:
• The contributions, monetary and nonmonetary of each party to the well being
of the family;
• The circumstances and factors which contributed to the dissolution of the marriage,
specifically including any ground for divorce
under the provisions of subdivisions (1), (3)
or (6) of § 20-91 or § 20-95.9
The most common uses of adultery in the context of equitable
distribution are to show that the conduct had a “direct economic
impact” on the parties’ finances10 or to show a “negative” nonmonetary contribution which “affected the marital estate or the
well being of the family.”11
Finally, in the context of the determination of custody or visitation
of minor children, courts are required to “give primary consideration to the best interests of the child.”12 A court must “look to
and consider the qualifications and fitness of the parents, their
adaptability to the task of caring for the child, their ability to
control and direct it, the age, sex and health of the child, its
temporal and moral well being, as well as the environment and
circumstances of its proposed home and the influences likely to
be exerted upon the child.”13 These factors pre-dated by over 30
years the statutory considerations now set forth in Virginia Code
§ 20-124.3, but they are now codified therein.14 Adultery has
always been singled out for special consideration:
In all custody cases the controlling consideration is always the child’s welfare and, in
determining the best interest of the child, the
court must decide by considering all the facts,
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When the issue of adultery is raised in a divorce proceeding,
the party alleging the adultery invariably seeks to gain a
confession or admission from the other party.
including what effect a nonmarital relationship
by a parent has on the child. The moral climate
in which children are to be raised is an
important consideration for the court in determining custody, and adultery is a reflection of
a mother’s moral values. An illicit relationship
to which minor children are exposed cannot
be condoned. Such a relationship must necessarily be given the most careful consideration
in a custody proceeding.15
Though adultery alone does not determine which parent is
awarded custody, it can be used as one of the factors comprising the decision:
[E]vidence of adultery, without more, is an
insufficient basis upon which to find that a
parent is an unfit custodian of his or her
child. However, as the Brown decision mandates, in determining a child’s best interest,
the extent to which the child is exposed to an
illicit relationship must be given the “most
careful consideration” in a custody proceeding. Furthermore, as Brown states, adultery is
a reflection of a parent’s moral values which
should be considered in evaluating the moral
climate in which a child is to be reared.16
accused party (if the allegations are true) can admit the allegation;
admit the allegation and counter with an excuse or other defense,
or refuse to answer the question and assert the protections provided by the Fifth Amendment of the United States Constitution
or Article 8 of the Virginia Constitution.19 If the privilege is asserted
the questioning party is presented with several options. It can
ignore it and move on, ask the court to compel the other party
to answer the question or ask the court to impose some form of
sanction upon the refusing party for his or her refusal to answer.
The Motion to Compel
A Motion to Compel may be filed after the assertion of the privilege is made during depositions or in discovery. If the refusal to
answer a specific question is made while in the presence of the
court, the follow-up request to the court is to compel the witness
to answer the question. The court must then decide on the validity of the assertion of the privilege.20 The Fifth Amendment21 protects persons from being “compelled ... to be a witness against
himself.”22 The Virginia Constitution protects persons from being
“compelled . . . to give evidence against himself.”23 Persons may
be compelled to answer a specific question if there has been a
waiver of the privilege or if the exposure to criminal prosecution
has been eliminated because the statute of limitations has
expired or there is immunity from prosecution.24
Waiver of the Privilege
Therefore, adultery or other criminal conduct may play a significant role in a divorce case on some issues. It should be noted
that in many cases, adultery does not affect the outcome at all.
This article deals with issues that may be considered when counsel deem that proof of adultery or lack thereof may affect an
issue in their case.
Privilege Against Self-Incrimination
In the context of a criminal case, “a ‘confession’ is generally
defined as a statement admitting or acknowledging all facts necessary for conviction of the crimes at issue.”17 “An ‘admission,’
on the other hand, consists of an admission or acknowledgment
of a fact or facts tending to prove guilt but which falls short of a
confession of all essential elements of the crime.”18 In either scenario, a confession or admission can be used as part of a criminal prosecution. Therefore, since adultery is a crime, any confession or admission of adultery could be used evidence in a criminal prosecution for that crime.
When the issue of adultery is raised in a divorce proceeding, the
party alleging the adultery invariably seeks to gain a confession
or admission from the other party. This may be done through
pleadings, discovery, depositions or ore tenus testimony. The
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February 2002
A waiver of a person’s privilege against self-incrimination, however, is difficult to establish.
“Courts indulge every reasonable presumption
against a waiver of fundamental constitutional
rights.” [citations omitted]. The Supreme Court
“has always set high standards of proof for the
waiver of constitutional rights . . .”
[citations omitted].
A waiver of a constitutional right must be “an
intentional relinquishment or abandonment of
a known right or privilege.” [citation omitted].
“Waivers of constitutional rights not only must
be voluntary but must be knowing, intelligent
acts done with sufficient awareness of the relevant circumstances and likely consequences.”
[citation omitted].25
To establish a waiver of a constitutional right, a “knowledge of
the facts basic to the exercise of the right” and the “intent to
relinquish that right” must be shown by “clear and unmistakable
proof.”26 Some basic guidelines for a waiver can be found in the
recent case of Travis v. Finley 27 and are as follows:
FA
• A waiver can only be made by the individual.28
• Failure to make a timely defense or objection
is a waiver.29
• Initially objecting only to relevance is not a
waiver in that it is not “inconsistent” with
claiming the privilege because if the court
agrees that the questions were irrelevant, the
party would not have to assert the privilege.30
However, care must be taken to assert the privilege at the earliest
opportunity. Must it be asserted in the initial pleadings? No case
from Virginia’s Court of Appeals or from the Supreme Court
directly addresses that issue, though at least one circuit court
expressly found a waiver of the privilege against self-incrimination
when the privilege was not asserted in the initial pleadings.31
However, that same court ruled the opposite way in a case nine
years later and ruled that a party did not waive his right to assert
his privilege against self-incrimination by failing to raise it in the
initial pleadings.32
Statute of Limitations
Because adultery is a Class 4 misdemeanor in Virginia, any criminal prosecution must be brought within one year of the alleged
offense.33 Though it may be easy to show that the alleged adulterous acts which are sought to be proved cannot be prosecuted
because they occurred more than one year in the past, it may
not follow that the court will compel an answer. The limits of
the privilege against self-incrimination do not necessarily coincide with those of the statute of limitations. First, the privilege
“applies not only to evidence which may directly support a criminal conviction, but to ‘information which would furnish a link in
the chain of evidence that could lead to prosecution, as well as
evidence which an individual reasonably believes could be used
against him in a criminal prosecution’.”34 Therefore, because an
act which occurred outside of the statute of limitations could be
“linked” to actions which occurred within the statute of limitations, the privilege should not be denied simply because the
allegation relates to an event which occurred outside the period
of the statute of limitations.
A Fairfax Circuit Court case (Edgar v. Edgar, 44 Va. Cir., 191, 192
(Fairfax Circuit Court, 1997)) has followed this rationale in
upholding the exercise of the privilege regarding adultery
alleged to have occurred more than one year prior, noting that it
“could be used as evidence of adultery occurring within the oneyear statute of limitations period and therefore may furnish a
link in a chain of evidence that could lead to prosecution.”35 It
should also be remembered that even though adultery may be
alleged in the divorce, there may have been other crimes for
which that adultery could provide the “link.” For example, consensual sodomy is a Class 6 felony in Virginia for which no
statute of limitations exists.36
Immunity
If a party is immune from prosecution, the privilege against selfincrimination is not necessary. “Testimony may be compelled
only ‘where immunity is complete and there is no possibility of
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prosecution’.”37 Though there does not have to be “absolute
immunity”, “the witness must be provided nothing less than the
protection guaranteed by the constitutional privilege.”38
The three types of immunity are use immunity, derivative use
immunity and transactional immunity.
“Use immunity protects a witness only from the ‘use of specific
testimony compelled from him under the grant of immunity,’ but
not from evidence obtained as a result of such testimony.”39
Thus, a person’s testimony may provide a prosecutor with the
“means and sources of information” to obtain other evidence
upon which to base a prosecution.40 Virginia Code § 19.2-270
provides “use immunity”:
In a criminal prosecution, other than for perjury,
or in an action on a penal statute, evidence
shall not be given against the accused of any
statement made by him as a witness upon a
legal examination in a criminal or civil action,
unless such statement was made when examined as a witness in his own behalf.41
The argument would be that if you call the opposing party as a
witness, they are not a “witness in his own behalf” and any testimony the party gives cannot be used against them in a criminal
prosecution. However, because “use immunity” is not “co-extensive with the constitutional privilege”, it does not overcome the
privilege against self-incrimination.42
“Derivative use immunity prohibits use against the witness of
evidence even indirectly obtained from his testimony.” “[T]ransactional immunity accords complete immunity from prosecution
to the witness for the offense related to compelled testimony”.
Both of these have been found “consonant and co-extensive with
constitutional safeguards and, thus, sufficient to supplant the
privilege [against self-incrimination].”43 The exact mechanism for
obtaining this type of immunity is not the subject of this article.
However, the key is whether the “immunity granted” is “‘coextensive with the scope of the privilege’ and ‘as comprehensive as the
protection afforded’ by” the privilege against self-incrimination.44
“Sword and Shield”
In the recent case of Travis v. Finley, 36 Va. App. 189, 548 S.E.2d
906 (2001), the Court of Appeals ruled that Virginia Code § 8.01223.1 superseded the common law “sword and shield” doctrine:
We conclude that Code § 8.01-223.1 barred
the trial court from dismissing mother’s petitions. We further conclude that, under the
facts of this case, Code § 8.01-223.1 supersedes the “sword and shield” doctrine.45
The trial court had dismissed the mother’s petition for custody
on the ground that she asserted her privilege against self-incrimination and refused to answer certain questions. The court of
appeals noted that “[w]hile the trial court did not articulate its
reasons for dismissal, we necessarily conclude it was under the
common law doctrine of ‘sword and shield’.”46
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At common law, if a party asserted the privilege against selfincrimination (i.e., using it as a “shield”), he or she could not
also use that claim as a “sword” to “sabotage any attempt by the
other party, either during pretrial discovery or at trial, to obtain
information relevant to the cause of action alleged, and relevant
to the possible defenses to the claim.”47 The underlying rationale
for this doctrine is that “it would be unjust to permit parties to
use the court to seek affirmative relief while at the same time
deflecting relevant questions, the answers to which may constitute
a defense to the claims asserted.”48 This common law doctrine has
been codified in Virginia Code § 8.01-401(B):
If any party, required by another to testify on
his behalf, refuses to testify, the court, officer,
or person before whom the proceeding is
pending, may, in addition to punishing said
party as for contempt, dismiss the action, or
other proceeding of the party so refusing, as
to the whole or any part thereof, or may
strike out and disregard the plea, answer, or
other defense of such party, or any part
thereof, as justice may require.49
Thus, prior to Travis v. Finley, litigants could assert the “sword
and shield” doctrine or Virginia Code § 8.01-401(B) to preclude a
party from obtaining affirmative relief or from presenting a
defense on certain matters.
However, the “sword and shield” doctrine and Virginia Code §
8.01-401(B) are in direct conflict with Virginia Code § 8.01-223.1
which provides as follows:
In any civil action the exercise by a party of
any constitutional protection shall not be used
against him.50
Travis v. Finley has definitively held that this statute prevails over
the common law “sword and shield” doctrine because it “cannot
conceive of any graver consequence than dismissing the action.”51
The party’s exercise of her constitutional protection “was ‘used
against’ her in the most absolute and final way.”52
In Travis v. Finley, the Court specifically found that Virginia
Code § 8.01-401(B) was not at issue because the refusing party
“was not called upon by another to ‘testify on his behalf’.”53
Though not decided by the Court, the clear conclusion is that
the codification of the “sword and shield” doctrine is also in
direct conflict with Virginia Code § 8.01-223.1. The use of the
statutory provisions of Virginia Code § 8.01-401(B) could also be
used “in the most absolute and final way” contrary to the constitutional protections available to litigants.
When Privilege Against Self-Incrimination
May Be Used Against A Party
Though not the primary focus of this article, there is one statute
which specifically permits the assertion of the privilege against
self-incrimination to be used against a litigant. Virginia Code §
20-88.59(G) provides as follows:
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If a party called to testify at a civil hearing
refuses to answer on the ground that the
testimony may be self-incriminating, the trier
of fact may draw an adverse inference from
the refusal.54
This statute is found in Chapter 5.3 of Title 20 of the Code of
Virginia. It is the Uniform Interstate Family Support Act (UIFSA).
Thus, in the context of an action brought under that chapter, the
assertion of this constitutional privilege can be used against the
party asserting the privilege. The constitutionality of this statute
has yet to be decided though it is likely that will occur at some
point in the future.
It is important to note that Virginia Code § 20-88.59(G) applies
only to UIFSA actions. Virginia Code § 20-88.59(G) specifically
states that this “article applies to all proceedings under this chapter.”55 Therefore, it may have no application outside a UIFSA
action. Though there are no reported cases addressing this
statute by the Virginia Court of Appeals or Supreme Court in the
context of a divorce action, an unpublished opinion of the
Virginia Court of Appeals makes passing reference to it which is
addressed in the endnote below.56
Conclusion
Unless there has been a waiver of the right to exercise the privilege against self-incrimination, courts should uphold a litigant’s
right to claim the privilege and should refrain from sanctioning
parties for their action. Though it remains to be seen whether
Virginia Code § 8.01-401(B) has any life left in it as applied to
parties testifying on their own behalf, the common law “sword
and shield” doctrine appears to have seen its demise in Virginia
with Travis v. Finley. Endnotes are on the following page.
Edward D. Barnes, chairman of Barnes &
Batzli, P.C., is a fellow of the American
Academy of Matrimonial Lawyers and a fellow
of the International Academy of Matrimonial
Lawyers (London). He received his J.D. from
the T.C. Williams School of Law at the
University of Richmond and his B.A. from East
Carolina University.
Charles E. Powers, a director of Barnes &
Batzli, P.C., is the current vice-president and
president-elect of the Metro Richmond Family
Bar Association. He received his J.D. From the
Marshall-Wythe School of Law, the College of
William & Mary, and his B.S.J. from Suffolk
University, Boston, Massachusetts.
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ENDNOTES
38 Gosling v. Commonwealth, 14 Va. App. 158, 163, 415 S.E.2d 870, 873 (1992).
1
“No man is bound to accuse himself.”
39 Id. at 164, 415 S.E.2d at 873.
2
U.S. CONST. amend. V.
40 Id., citing Kastigar v. United States, 406 U.S. 441, 449-50 (1972).
3
VA. CONST. of 1776, art. I, § 8; VA. CONST. of 1971, art. I, § 8.
4
HAMMURABI’S CODE
5
THE CAPITALL LAWES
6
3 Hening, Statutes of Virginia (1823), 71.
7
VIRGINIA CODE § 18.2-365; VIRGINIA CODE § 18.2-11(d).
OF
OF
42 VIRGINIA CODE § 19.2-270.
NEW ENGLAND (1641-1642) § 9
43 Gosling at 165, 415 S.E.2d at 873.
8
VIRGINIA CODE § 20-91(A)(1).
9
VIRGINIA CODE § 20-107.1(B).
10 VIRGINIA CODE § 20-107.3(E).
11 Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833, 836 (1988).
12 O’Loughlin v. O’Loughlin, 20 Va. App. 522, 527, 458 S.E.2d 323, 325 (1995).
13 VIRGINIA CODE § 20-124.2(A).
14 Campbell v. Campbell, 203 Va. 61, 63, 122 S.E.2d 658, 661 (1961).
15 VIRGINIA CODE § 20-124.3.
16 Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91(1977).
17 Brinkley v. Brinkley, 1 Va. App. 222, 224, 336 S.E.2d 901, 902 (1992).
18 Caminade v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986).
19 Id.
44 Gosling at 164, 415 S.E.2d at 873, citing Kastigar v. United States, 406 U.S.
441, 453 (1972) and Caldweall v. Commonwealth, 8 Va. App. 86, 88- 89, 379
S.E.2d 368, 370 (1989).
45 Id., citing Kastigar v. United States, 406 U.S. 441, 449 (1972).
46 Travis v. Finley, 36 Va. App. 189, 202, 548 S.E.2d 906, 912 (2001).
47 Id. at 197, 548 S.E.2d at 910.
48 Davis v. Davis, 233 Va. 452, 456-57, 357 S.E.2d 495, 498 (1987).
49 Id.
50 VIRGINIA CODE § 8.01-401(B).
51 VIRGINIA CODE § 8.01-223.1.
52 Id. at 201, 548 S.E.2d at 912.
53 Id. at 202, 548 S.E.2d at 912.
54 Travis at 197, 548 S.E.2d at 910.
55 VIRGINIA CODE § 20-88.59(G).
56 VIRGINIA CODE § 20-88.44.
20 The proper method of invoking the privilege is to state that the party “refuses
to answer the question and asserts his [or her] privilege pursuant to the Fifth
Amendment of the United States Constitution and Article One, Section 8 of
the Virginia Constitution.”
21 North American Mortg. Investors v. Pomponio, 219 Va. 914, 918, 252 S.E.2d
345, 348 (1979).
22 The Fifth Amendment is applicable to state courts because it has been incorporated into the due process clause of the Fourteenth Amendment and,
accordingly, applies to the states. Malloy v. Hogan, 378 U.S. 1, 6-11 (1964).
23 U.S. CONST. amend. V.
24 VA. CONST. of 1971, art. 8.
25 Gosling v. Commonwealth, 14 Va. App. 158, 163-64, 415 S.E.2d 870, 873
(1992). This case provides a good overview of the different types of immunity available to criminal defendants.
26 Travis v. Finley, 36 Va. App. 189, 198-199, 548 S.E.2d 906, 911 (2001), citing
White v. Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974) (citing
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); Miranda v. Arizona, 384 U.S.
436, 475 (1966) (citing Zerbst); Johnson v. Zerbst, 304 U.S. 458, 464 (1938);
Brady v. United States, 397 U.S. 742, 748 (1970) and Hunter v.
Commonwealth, 13 Va. App. 187, 191 (1991).
27 Id. at 200, 548 S.E.2d at 911, citing Weldman v. Babcock, 241 Va. 40, 45, 400
S.E.2d 164, 167 (1991); Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707
(1987); May v. Martin, 205 Va. 397, 404, 137 S.E.2d 860, 865 (1964) and
Chawla v. BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S.E.2d 829, 833
(1998).
28 36 Va. App. 189, 548 S.E.2d 906 (2001).
29 Id. at 200, 548 S.E.2d at 911. A letter from counsel indicating that discovery
responses would be forthcoming is not a waiver of the privilege.
30 Id. at 199, 548 S.E.2d at 911, citing numerous cases including Evans v.
Commonwealth, 226 Va. 292, 298, 308 S.E.2d 126, 130 (1983) (claim of privilege against self-incrimination waived by failure to make timely objection).
31 Id. at 200-201, 548 S.E.2d at 911-12.
32 Leitner v. Leitner, 11 Va. Cir. 281, 282 (Fairfax Circuit Court, 1988).
33 Helmes v. Helmes, 41 Va. Cir. 277, 277-78 (Fairfax Circuit Court, 1997). In that
case, the Fairfax Circuit Court noted that neither the Virginia Supreme Court
nor Court of Appeals had addressed the issue but relied upon case law from
other states to support its rationale. Mahne v. Mahne, 66 N.J. 53, 328 A.2d
225 (1974) and In Re: Knapp, 536 So.2d 1330 (Miss. 1988).
34 VIRGINIA CODE § 18.2-365 and VIRGINIA CODE § 19.2-8.
35 United States v. Sharp, 920 F.2d 1167 (4th Cir. 1990).
36 Edgar v. Edgar, 44 Va. Cir. 191, 192 (Fairfax Circuit Court 1997).
37 VIRGINIA CODE § 18.2-361.
30
41 Id. at 164-65, 415 S.E.2d at 873.
LAWS, 129, 130
February 2002
57 Helbert v. Helbert (Record No. 0794-98-3) (Court of Appeals, August 25,
1998). In a divorce case, a party asked the court to draw a negative inference
from the invocation of the privilege against self-incrimination by the alleged
paramour. The Court of Appeals held that Virginia Code § 20-88.59(G) did
not allow such an adverse inference because it did not apply when a “nonparty witness asserts the right.” The Court did not specifically state that this
statute was applicable in the context of a divorce case nor does it appear that
it was an issue in the case. The Court, however, referenced this statute and
stated that it is “true that Code § 20-88.59(G) allows the trier of fact to draw
an adverse inference from the refusal of a ‘party’ to answer on the grounds
of self-incrimination.” This is clearly in conflict with Virginia Code § 8.01223.1 and it is likely that the rationale of Travis v. Finley will control regarding this statute also.